Case Document

100%Judiciary

HCAL 1793/2018

[2020] HKCFI 1369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1793 of 2018

BETWEEN

	Awal Abdul	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 17 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 3 January 2020.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by adding the Board as respondent and by deleting the Board as replaced by the Director as interested party.

The applicant

4.The applicant is a Bangladeshi national. He came to Hong Kong on 2 July 2014 illegally through China. He lodged a non-refoulement claim by written representation on 5 July 2014.

5.He claimed that if refouled, he would be harmed or even killed by Awami League party leaders or member or supporters, in particular Shahalam, Murad, Faruk and Nasir.

6.He was an AL supporter. But he converted to BNP because he disagreed with the way AL people killing a BNP member called Tiger. AL members took him as the betrayer. There were two incidents, both happened in 2014, in which he was attacked by a group of AL members. On the first incident, he was beaten up for one or two minutes with wooden sticks and he managed to escape. On the second occasion, he was attacked from behind at a place near the mosque. He was hit with bamboo sticks. The people fled. He sought medical treatment in a hospital. His nephew, who was a AL supporter, told him that AL had decided to kill him. His wife told him that the AL people were looking for him. He dared not go home and he felt being stalked by other people, whom he suspected to be AL people. He made arrangement to go to Hong Kong.

The Director’s Decisions

7.The Director considered his application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 13 June 2016 and Notice of Further Decision dated 29 June 2017 (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that future risk of being harmed or killed by the AL people if he returned to Bangladesh was low [69]; that state protection was available to him [70] and internal relocation was an option open to him [75]. His credibility of claim was also not accepted [83]. His claim under BOR2 risk was not established. See paragraph 10 of the Director’s Further Decision.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 21 May 2018 and 25 May 2018 respectively.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

11.The Board considered the applicant’s evidence and found that it had serious doubt about his credibility [94]; that it did not accept the facts as alleged by the applicant in support of his claim and finally found that the applicant would not face a real risk of being killed, kidnapped, threatened or harmed by Shahalam, Murad, Faruk, Nasir or other AL people, or BNP people, or the authorities, or anyone, for reasons relating to his actual or perceived links or involvement with the AL, the BNP, or their affiliated organization, if he returned to Bangladesh now or in the reasonably foreseeable future [112].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 31 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. His duty lawyer had explained the Director’s Decision to him and the interpreter of the Board had explained the Board’s Decision to him.

15.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

17.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

Dated the 30^th day of June 2020

	(Mike Mak)
	for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 30/6/2020 Awal Abdul Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3999/16/6/189/B550 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2561/15 & RBCZ 9002338/17 (formerly RBCZ 2351/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)